Mr. Stephen Ellis
Justice and Home Affairs Council Working Group
Directorate General H: JHA
Council of the European Union
Rue de la Loi 175
20 May 2003
Dear Mr. Ellis,
Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, COM (2001) 510 final
As the Council approaches its final stages of negotiations on the Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection directive, Save the Children would like to draw its attention to remaining issues of concern in relation to children. The points made follow on from Save the Children’s comments on this draft Directive, from November 2001.
Children rarely receive protection under the 1951 Convention and 1967 Protocol. This Directive has particular significance in securing the necessary international protection for children and it is hoped the current recognition rate for children will improve. Although there are many aspects of the Directive which Save the Children welcomes, such as the recognition of child-specific forms of persecution and that the best interests of the child must be taken into account, there are still important ways in which this Directive could be improved in the interests of children, and especially separated children. Save the Children sets these out below and urges the Council to take the following comments and amendments on board in its final considerations of this key Directive.
(j) (ii) The Directive is unclear on the issue of dependent children, since it states that children have to be unmarried and dependent to qualify as family members. It should be made clear that unmarried children under 18 do not have to be dependent on their parents in order for them to be considered as family members for reasons of determining refugee status. However the criteria of dependency should be maintained for those over 18.
In fact, it is logical to use the accepted definition of a child according to the UN Convention on the Rights of the Child and not to introduce any additional requirement of dependency in order for a child to be included as a family member.
We propose the following extra clause to strengthen this article:
(e) that a child’s testimony will be influenced by their emotional and psychological maturity as well as by the trauma of the persecutory experience and that specially trained persons with the appropriate knowledge of the psychological, emotional and physical development and behaviour of children conduct any interview.
We also urge that detailed guidance on child specific forms of persecution be included in future interpretative guidance.
We propose the following extra clause to this article:
3. In case of unaccompanied minors, Member States may return the child only if it’s in his/her best interests and only if adequate reception and care are available.
Decisions on whether to return a child to its country of origin must be guided, according to the UN Convention on the Rights of the Child, by the principle of the ‘best interests of the child’ and so each case must be examined on an individual basis. The Council resolution of 26 June 1997 on ”unaccompanied minors who are nationals of third countries” states that MS “may only return the minor to his country of origin [...], if on arrival therein – depending on his needs in the light of age and degree of independence – adequate reception and care are available.” (art. 5). Save the Children believes there would be very few, if any, circumstances where internal protection is in the best interest of a child separated from its parents or normal/customary caregiver. Children returned in this way could be further exploited by those who had persecuted them originally causing them to flee from their family and community. This is particularly likely for example in the case of children who have been trafficked and who are therefore extremely vulnerable to being re-trafficked or rejected by their family and community.
We propose the following addition to this article to bring the directive in line with the Optional Protocol to the CRC on the involvement of children in armed conflict:
(d) (iii) where a child has been forcibly conscripted or required to take a direct part in hostilities
We wish to see a reference here to the specific social welfare needs of separated children (unaccompanied minors), and a requirement that access to social welfare should be under the same conditions as nationals of Member States. This would be in line with provisions in Article 27 on Health and Psychological care.
A thorough assessment of children’s health, educational and social welfare needs should be undertaken alongside an assessment of their asylum claim. States should respond to the needs arising through this process without prejudice or being confused with the child’s asylum claim.
Save the Children urges the following amendments to this article:
1. Member States shall take the necessary measures as soon as possible, to ensure the representation of unaccompanied minors seeking refugee or subsidiary protection status by legal guardianship, or representation by an organisation which is responsible for the care and well-being of minors, or by an other appropriate representation.
Representation is crucial for an unaccompanied minor during his/her application for status. Member States should be required to provide it prior to receiving status, as provided by art. 3(4) of the 1997 Council resolution on unaccompanied minors, and not after as currently stated in the text. It is Save the Children’s view that ideally this should be provided within one month of the child becoming known to the authorities.
2. Member States shall ensure that the minor’s needs are duly met in the implementation of the provisions of this Directive by the appointed guardian or representative. Their role will be to ensure that all decisions taken are in the best interests of the child, that an unaccompanied minor receives suitable care and legal representation, that the child is consulted and advised, and to advocate on the child’s behalf.
Add at end of parag. 3:
An unaccompanied minor should never be detained for reason of his/her application for refugee or subsidiary protection status.
A number of other international instruments are also relevant on this point: Art 37 of the UNCRC, articles 7 and 9 of the International Covenant on Civil and Political Rights 1996 and articles 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
We also recommend this additional clause:
7. An unaccompanied minor shall have the right to fully participate in every aspect of the process in accordance with his/her age and maturity and receive all relevant information in his/her case.
Save the Children urges that the provisions on family unity ensure that children under 18 and dependent children of the beneficiary of refugee or subsidiary status receive a status equal to that of the beneficiary and thus have access to the benefits thereby accorded by that international protection.
Please do not hesitate to contact me for further information.
Save the Children Brussels Office
Tel: 02 512 7851